11202398 (B.P.A.I. Sep. 28, 2009)

Ex Parte Forbes et al

Board of Patent Appeals and InterferencesSep 28, 2009

11202398 (B.P.A.I. Sep. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JAMES W. FORBES and ALISTAIR WILSON ____________ Appeal 2009-009171 Reissue Application 11/202,398 Patent 6,604,470 Technology Center 3600 ____________ Decided: September 28, 2009 ____________ Before WILLIAM F. PATE III, JENNIFER D. BAHR, and JOHN C. KERINS, Administrative Patent Judges. WILLIAM F. PATE III, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE This is an appeal from the final rejection of claims 1-4, 7-12, 14, 15, 17, 18, 20, 23-27, 29, 31-33, 35, 37-39, 41, 42, 44, and 47-49. Claims 5, 6, 13, 16, 19, 21, 22, 28, 30, 34, 36, 40, 43, 45, 46 and 50 stand objected to. These are the only claims in the application. This reissue application seeks Appeal 2009-009171 Application 11/202,398 Patent 6,604,470 2 to reissue U.S. Patent 6,604,470, issued August 12, 2003. We have jurisdiction over the appeal under 35 U.S.C. §§ 134 and 6. The claimed subject matter in this reissue application is directed to a rail road car with a center beam wherein the upper part of the center beam has longitudinally extending face structure against which the lading can be placed. Claim 11, reproduced below, is further illustrative of the claimed subject matter. 11. A center beam rail road car having a longitudinal centerline, the center beam rail road car being supported by rail car trucks at either end thereof, said center beam rail road car comprising: a center sill extending between said trucks; a decking structure extending laterally of said center sill, upon which loads can be placed; an open web work structure extending upwardly from said center sill; an upper beam mounted upon said open web work structure, said upper beam being mounted to said open web work structure at a joining interface; said upper beam having a pair of longitudinally extending, laterally spaced apart, planar members, said planar members each having a smooth outwardly facing surface against which lading in the form of bundles of forest products having a length of at least 8 ft and a depth of at least 16 inches placed laterally outboard thereof can bear, said bundles of forest products being oriented such that the longitudinal axes of the bundles are parallel to the longitudinal centerline of the rail road car; and Appeal 2009-009171 Application 11/202,398 Patent 6,604,470 3 said upper beam planar members having an outside lateral dimension matching said open web work structure at said joining interface. REFERENCES The references of record relied upon by the examiner as evidence of anticipation and obviousness are: Saxton US 5,758,584 Jun. 2, 1998 Dominguez US 4,951,575 Aug. 28, 1990 REJECTIONS Claims 1-3, 7-12, 14, 18, 20, 23-27, 31-33, 38, 39, 41, 42, 44 and 47- 49 stand rejected under 35 U.S.C. § 103 as unpatentable over Saxton in view of Dominguez. Claims 1, 3, 11, 15, 17, 25, 27, 35, 37 and 39 stand rejected under 35 U.S.C. § 102(b) as anticipated by Dominguez. Claims 4 and 29 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Dominguez. ISSUE Appellants argue that neither Saxton nor Dominguez includes an upper beam having at least one structural member having a longitudinal face against which the lading of forest products can bear. Accordingly, the issue on appeal is whether the Appellants have established that the Examiner erred in finding that Saxton or Dominguez discloses or renders obvious such an upper beam. OPINION We have thoroughly reviewed the rejections on appeal in light of the arguments of the Appellants and the Examiner. As a result of this review, Appeal 2009-009171 Application 11/202,398 Patent 6,604,470 4 we have found that the applied prior art does not anticipate claims 1, 3, 11, 15, 17, 25, 27, 35, 37 and 39. We have further determined that the applied art does not establish the prima facie obviousness of claims 1-3, 7-12, 14, 18, 20, 23-27, 31-33, 38, 39, 41, 42, 44 and 47-49, or of claims 4 and 29 on appeal. Therefore, the rejections on appeal are reversed. Our reasons follow. Appellants’ claims on appeal are directed to a railroad car having an upper center beam that presents longitudinal bearing faces that are at least eight feet long, inasmuch as the faces must accommodate or provide a bearing surface for lading in the form of bundles of forest products having a length of at least eight feet. This longitudinal face is recited in several ways in the independent claims including: having a longitudinally extending face against which the lading can bear, claim 1; having a smooth outwardly facing surface, claim 11; having an outwardly facing surface “standing proud”, i.e., that is protuberant of or extends outward, of the center supporting posts, claim 25; and presenting a bearing surface facing laterally outward against which the lading can bear, claim 42. Saxton discloses a center beam rail car. As best seen in Fig. 4, the rail car includes a center beam 28 extending upwardly above the center sill with the beam extending between the two bulkheads 30 (Fig. 1) on opposite ends of the rail car. See col. 4, ll. 6-12. The top of the center beam is shown in Fig. 9. The upper beam 62 is a rectangular steel tube to which transfer members 67 are welded. See col. 5, ll. 1-15. As can be seen from Fig. 9 and Fig. 6, the upright members 74 and 76 which form the truss-like center beam structure partially cover or cradle the upper beam 62 at the points of Appeal 2009-009171 Application 11/202,398 Patent 6,604,470 5 attachment. Thus, upper beam 62 does not provide a longitudinally extending face against which the lading in the form of forest products of at least eight feet in length can bear, since its flat surface is interrupted by the flanges of the upright members 74 and 76 at regular intervals. The Examiner does not contend that these intervals are greater than at least eight feet. Similarly, Dominguez in Fig. 7 shows an upper beam 12 having a U- shaped cross section. The lower section 12a is affixed in the upper end of each of the truss vertical column assemblies 10. See col. 3, ll. 13-43. Here again, the upstanding vertical column assemblies partially cover the face of the upper beam 12 at the points of connection. These points of connection are closer together than eight feet. Therefore, Dominguez does not disclose longitudinally extending faces for the lading to bear against, inasmuch as lading of the prescribed length placed in the vicinity of the upper beam would bear on the flanges of the vertical column assemblies instead. The Examiner thus erred in finding that Dominguez anticipates the claims rejected under §102. Further, since neither reference discloses a longitudinally extending face on the upper beam, the combined teachings of these references do not provide a rational underpinning for a proper rejection under § 103. We acknowledge the Examiner’s arguments that the lading could be warped, have shims, or contact the upper beam through the agency of the vertical columns. However, these arguments do not address the structural requirements of the claims on appeal which include providing a longitudinally extending face which the lading can contact. Accordingly, Appellants have convinced us that the Examiner erred in rejecting claims 1, Appeal 2009-009171 Application 11/202,398 Patent 6,604,470 6 3, 11, 15, 17, 25, 27, 35, 37 and 39 under § 102 of the statute and rejecting claims 1-4, 7-12, 14, 18, 20, 23-27, 29, 31-33, 38, 39, 41, 42, 44, and 47-49 under § 103 of the statute. Therefore, the rejections of these claims are reversed. REVERSED Vsh HAHN LOESER & PARKS, LLP ONE GOJO PLAZA SUITE 300 AKRON OH 44311-1076